Showing posts with label Religious Liberty. Show all posts
Showing posts with label Religious Liberty. Show all posts
Thursday, May 07, 2020
Monday, May 04, 2020
Wednesday, April 22, 2020
Princeton Constitutional law prof. on free exercise of religion
Between 15-39 min. mark, Princeton Constitutional lawyer discusses the free exercise of religion during the pandemic:
Tuesday, April 14, 2020
Saturday, April 11, 2020
Federal court strikes down anti-church policy
HT: Robert Gagnon
12 KEY QUOTES FROM THE COURT'S PERSPECTIVE
1. "On Holy Thursday, an American mayor criminalized the communal celebration of Easter. That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion. But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship – and even though it’s Easter. The Mayor’s decision is stunning. And it is, 'beyond all reason,' unconstitutional."
2. "The Pilgrims were heirs to a long line of persecuted Christians, including some punished with prison or worse for the crime of celebrating Easter– and an even longer line of persecuted peoples of more ancient faiths.And although their notions of tolerance left more than a little to be desired, the Pilgrims understood at least this much: No place, not even the unknown, is worse than any place whose state forbids the exercise of your sincerely held religious beliefs."
3. "The Pilgrims’ history of fleeing religious persecution was just one of the many “historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause” of our Constitution’s First Amendment.”
It provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”
It provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”
4. "On Sunday, tomorrow, Plaintiff On Fire Christian Center wishes to hold an Easter service, as Christians have done for two thousand years. On Fire has planned a drive-in church service in accordance with the Center for Disease Control’s social distancing guidelines."
5. "Louisville is substantially burdening On Fire’s sincerely held religious beliefs in a manner that is not “neutral” between religious and non-religious conduct, with orders and threats that are not “generally applicable” to both religious and non-religious conduct. The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.”
6. "Here, Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs – including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly – including, again, the parking lots of liquor stores. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny.” That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”
7. "Louisville will be (highly) unlikely to make the second of those two showings. To be sure, Louisville is pursuing a compelling interest of the highest order through its efforts to contain the current pandemic. But its actions violate the Free Exercise Clause “beyond all question” because they are not even close to being “narrowly tailored to advance that interest.”
8. "The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is 'essential,' so is Easter."
9. "The Free Exercise Clause protects their right to worship as their conscience commands them. It is not the role of a court to tell religious believers what is and isn’t important to their religion, so long as their belief in the religious importance is sincere. The Free Exercise clause protects sincerely held religious beliefs that are at times not “acceptable, logical, consistent, or comprehensible to others.”
10. "It is true that On Fire’s church members could believe in everything Easter teaches them from their homes on Sunday. Soo too could the Pilgrims before they left Europe. But the Pilgrims demanded more than that. And so too does the Free Exercise Clause. It “guarantees the free exercise of religion, not just the right to inward belief.”
11. "That promise is as important for the minister as for those ministered to, as vital to the shepherd as to the sheep. And it is as necessary now as when the Mayflower met Plymouth Rock."
12. "the Court believes there is a strong likelihood On Fire will prevail on the merits of its claim that Louisville may not ban its citizens from worshiping – or, in the relative safety of their cars, from worshiping together."
Friday, April 10, 2020
Sunday, April 05, 2020
The "religious exemption"
Atheists like Jeff Lowder and Richard Dawkins, as well as apostate Randal Rauser have been expressing outrage at a CNN report about "at least 14 states exempting religious gatherings from stay at home orders."
(Strictly speaking, Lowder simply retweeted someone else, but it's safe to say this reflects his own consternation.)
Dawkins said:
A church is an enclosed space where people right next to each other sing their lungs out into the air. A church is virus heaven: a focal point where people get infected, then go out & infect others
There are several issues that need to be sorted out:
1. There's a distinctively American issue. The "religious exemption" is a Constitutional exemption: the free exercise clause in the first amendment. This isn't an exception that some mayors and governors are inventing for churches and synagogues. Rather, this is a case of mayors and governors defending a Constitutional right. The Bill of Rights contains a number of exemptions from the heavy-hand of gov't. It's no different than freedom of speech, assembly, the press, the right to bear arms, 4th and 5th amendment protections and civil liberties.
2. Then there's the ethical issue. Dawkins' point seems to be that we have no right to endanger others. If that's his point, it's simplistic and needs to be qualified:
i) Church attendance is voluntary. It's not like parishioners attend at gunpoint. Insofar as attending church carries the risk of infection, parishioners mutually consent to the risk. And that's hardly unique to church.
Shopping at Lowe's, Home Depot, Target, Walmart, Fred Meyers, &c. carries the risk of contracting the virus, then spreading it to others. Yet shoppers assume that risk by mutual consent.
ii) At the same time, they are putting others in the community at risk who did not consent to becoming infected by the shoppers because some of them didn't shop at Lowe's or Home Depot, &c.
Yet critics of churchgoers presumably don't think it's wrong to expose others to potential infection because you went shopping at Home Depot but they didn't. Presumably, critics of the churchgoers accept a generalized risk where a shopper at Home Depot might infect a shopper at Target.
iii) Presumably, critics of churchgoers draw the line because they think drugstores, bulk stories, supermarkets, &c. provide "essential goods and services"–whereas public worship doesn't provide an essential good or service. So the risk is warranted or unwarranted depending on whether you classify the transaction as an essential good or service.
Of course, that just means many critics have a secular view of Christianity. But that begs the question. Christians are hardly obligated to share the same view of Christianity as atheists.
iv) Jeff Lowder lives in a state that legalized pot. As a rule, decriminalizing a product or behavior makes the usage or behavior more prevalent. Driving under the influence endangers the life and health of the other drivers, bikers, cyclists, and pedestrians. But how many critics of churchgoers are equally critical of legalizing pot? If the objection is that it's wrong to put others at risk, and if they were morally consistent, then they'd be opposed to legalizing weed.
v) In addition, I've read that many pot shops have been exempted from lockdowns. Pot shops are treated as if they provide an essential good or service–unlike churches. Do critics of churchgoers regard pot shops as essential businesses? There's a lack of moral seriousness in the criticisms and comparisons. Lots of irrational, contradictory indignation.
Monday, March 30, 2020
Crackdown on churches and synogogues
Tampa megachurch pastor Rev. Rodney Howard-Browne was arrested for holding voluntary services and "faces a punishment of up to 60 days in jail and fines totaling up to $500." This raises an important church-state concern, as does New York City Mayor Bill de Blasio's outrageous threat "to permanently close churches and synagogues [mosques?] that hold services during the coronavirus pandemic." He doesn't have the constitutional authority to "permanently close" any church, though he apparently thinks he does.
Getting an abortion is an "essential" service according to Democrat-governed areas (and the wicked NYT). In many places keeping liquor stores open is also an "essential" service. We go to grocery stories in close contact with tens or hundreds of people. If you don't touch your face with unwashed hands, you are very unlikely to get COVID-19, particularly if not standing within 3-6 feet of the same person for 15-30 minutes or more. Many church buildings have enough space to make such a seating arrangement possible.
How long should churches allow the state to close their doors? Are churches not going to meet for Easter celebration? What if the restrictions persist over many months, even over a year? In ancient Israel a disease or plague would have prompted people to hold a national convocation of repentance, not to disperse. Democrats are already inclined to act with impunity against the church, as Beto's remark about removing the tax-exempt status of any church that does not kowtow to the LGBTQ agenda. These recent events will only make matters worse, with long-term ramifications well beyond the time that it takes COVID-19 to run its course.
Thursday, March 26, 2020
Friday, March 20, 2020
Can the state cancel church services?
From two different conversations:
Hays
The question at issue isn't whether it's permissible to cancel church under some circumstances, but the circumstances under which it's permissible to cancel church. The abstraction offers no guidance.
Wolfe
I think that for many it is whether it is permissible to cancel church. So you affirm?
Hays
It's easy to dream up examples. Take a church near a raging forest fire. The extreme examples are an easy call. The coronavirus is more disputable because the projections are so iffy (for one thing). There's a continuum between unmistakable justifications and hypothetical threats with varying degrees of likelihood and severity.
Wolfe
If it is disputable, then you defer to civil authority.
Hays
No I don't. I don't defer to Mayor Blasio or Gov Newsom or Gov Inslee.
Since you don't explain how if it's disputable, you defer to civil authority, it's hard to respond, since I don't know your underlying rationale. We could probably go layers deep on the issue.
i) If this is a Rom 13 thing, here's my general view of Rom 13:
ii) I'd add that even at a Rom 13 level, for Christian Americans there's a sense in which Rom 13 is mediated by the US Constitution inasmuch as submission to civil authority takes that particular form in our situation.
iii) If you subscribe to a generic deference to civil authority in case a public policy question is disputable, I disagree. That's too abstract. We always need to take the facts into consideration. If we know that a particular civil magistrate is a fool, we have no duty to defer to his judgment in policy matters. He has no wisdom or virtue. Indeed, we have a duty to dissent from his judgment in policy matters.
iv) I'd add that American officials have no authority to cancel church services. That violates the free exercise clause, further augmented by the RFRA. So it's not even civil disobedience to defy them in that regard.
v) There is, of course, a pragmatic dimension to this. We might defer to civil authority because it's too risky to resist. We must weigh the cost. Sometimes you can get away with it. If enough people disregard a law or policy, that often becomes moot.
i) This isn't directly about a general right regarding free assembly but an explicitly guaranteed Constitutional right regarding the exercise of religion. The exercise of religion includes public assembly, but is more specific.
ii) This is also about civil authorities taking it upon themselves to judge which kinds of goods and services are essential and which are nonessential, deeming public worship to be nonessential.
iii) I don't subscribe to mandatory evacuations. People should be free to stay at their own risk. many people disregard mandatory evacuations. That's a gamble, sometimes they lose the bet. But it's their life.
iv) Much depends on examples. It ranges along a continuum. Sure, authorities can shut down a building (including a church) with a gas leak. Or it can cordon off a road with a gas leak, indirectly impeding access to a church.
If there's a raging forest fire, the authorities can block access to the area until the fire is under control. Temporary curfews are sometimes justified.
The question is whether these are valid analogies to an open-ended policy of criminalizing church services for the indefinite duration of a pandemic. Especially when restrictions about social distancing and essential/nonessential services are arbitrarily discriminatory.
Put another way, there's the fallacy of extrapolating from clear-cut examples to borderline cases to increasingly attenuated examples where the principle becomes ac hoc and tyrannical.
v) This isn't about shutting down a church building because it violates the fire code, but a sweeping ban on church services citywide and statewide.
Tuesday, March 17, 2020
What if Grace Community Church defied the state?
Grace Community Church recently said the following on their church website:
We were looking forward to our normal Sunday fellowship and worship. But we have been ordered by the state authorities to limit gatherings to 250 people or less, which means we are unable to meet together.
Steve Hays has already discussed this at length in his post "MacArthur bows down to Caesar" and in his post "Regulating the size of church services".
However, I just wanted to offer a "what if" scenario. What if Grace Community Church had said something like the following instead:
We were looking forward to our normal Sunday fellowship and worship. But we have been ordered by the state authorities to limit gatherings to 250 people or less, which means we are unable to meet together in a normal way for Sunday fellowship and worship.So, instead of our normal Sunday fellowship and worship, we will do something a little bit different. We will admit the first 251 people to our Sunday fellowship and worship, but we will close our doors after this number has been reached.
One extra person on top of the state mandate is not going to significantly increase the risk of coronavirus transmission. However, what it will do is demonstrate that "We must obey God rather than men" (Acts 5:29).
This is not a new position. This is what we have maintained over the years. This is in keeping in line with what our pastor John MacArthur has preached over his long and faithful ministry. As Pastor John said in a past sermon:
At the seminary, we put an article up on the seminary website about homosexuality. Within a matter of hours, we received a letter ordering us to cease and desist immediately or face a very severe lawsuit. Could we be sued for taking this position? Absolutely. Insurance companies that provide liability insurances for churches so that we’re protected against lawsuits are beginning to say, “We will not accept responsibility for lawsuits on homosexual or same-sex marriage issues.” The church is out there all on its own.Now, just to make it clear: We don’t bow down to Caesar. We bow to our king. But the faithful people didn’t bow down. The unfaithful people bowed down to idols. They bowed down to monarchs. They bowed down to godless kings. Faithful people didn’t bow down. Mordecai didn’t bow down. Daniel didn’t bow down; his friends didn’t bow down. Jesus didn’t bow down. Paul didn’t bow down.
And today, brothers and sisters in Christ, we will not bow down.
Monday, March 16, 2020
Regulating the size of church services
Some pushback from my original post:
@Phil_Johnson_The GCC elders discussed whether the California ban on large gatherings is an Acts 5:29 issue or a Romans 13:1 situation.Our consensus was that since this is a health emergency and applies to everyone (as opposed to a decree targeting the church for persecution) we’re going to act in accord with Romans 13.
Problem with Phil's explanation is that it stands at odds with the official rationale:
We were looking forward to our normal Sunday fellowship and worship. But we have been ordered by the state authorities to limit gatherings to 250 people or less, which means we are unable to meet together.
Not only does the official rationale fail to mention a "health emergency" as the motivating factor, but it's contrary to the official rationale they do give, which is that they were planning to hold services as usual, and only canceled the service when the state forced their hand. But if the health emergency was their motivation, they'd take the initiative rather than waiting for the state mandated closure (of services over the arbitrary numerical limit).
For his part,
@Fred_ButlerGiven the current health crisis, no one is currently concerned about constitutional rights.
Well, that's a rather damning oversight. When the state abrogates the authority to regulate the size of Christian gatherings, that's a serious issue.
Finishes w/ some odd comment about live streaming and bending the outbreak curve or something.
Nothing odd about that: the oft-cited rationalization is that we need to practice social distancing to flatten the outbreak curve. Large social gatherings supposedly contribute to the exponential infection rate. That's not a statement of my own position.
complains this is the state disrupting worship. Well, other than GCC's 4K plus members told to stay home, we held the standard worship service today. No disruption. Back to normal in a couple of Sundays.
It's not disruptive to public worship when a state mandate forces GCC's 4K plus members to say home rather than meet together for corporate fellowship?
All this simply because a state official picks a figure out of the hat about the size of public gatherings. There's a failure by Phil and Fred to integrate Rom 13 into the US Constitution and the Bill of Rights. But under our system of gov't, the Rom 13 principle is mediated by the Constitution and Bill of Rights. Citizens are in submission to gov't via the Constitution and the Bill of Rights.
Sunday, March 15, 2020
MacArthur bows down to Caesar
Five years ago, in the wake of the Obergefell ruling, John MacArthur preached a defiant sermon. Among other things he said:
At the seminary, we put an article up on the seminary website about homosexuality. Within a matter of hours, we received a letter ordering us to cease and desist immediately or face a very severe lawsuit. Could we be sued for taking this position? Absolutely. Insurance companies that provide liability insurances for churches so that we’re protected against lawsuits are beginning to say, “We will not accept responsibility for lawsuits on homosexual or same-sex marriage issues.” The church is out there all on its own.Now, just to make it clear: We don’t bow down to Caesar. We bow to our king. But the faithful people didn’t bow down. The unfaithful people bowed down to idols. They bowed down to monarchs. They bowed down to godless kings. Faithful people didn’t bow down. Mordecai didn’t bow down. Daniel didn’t bow down; his friends didn’t bow down. Jesus didn’t bow down. Paul didn’t bow down.
It was a classic sermon. And it's striking to compare it to the current policy at Grace Community Church:
We were looking forward to our normal Sunday fellowship and worship. But we have been ordered by the state authorities to limit gatherings to 250 people or less, which means we are unable to meet together.
So JMac bowed down to Caesar after all. Sure, it's on a different issue, but notice all it took for him to disband public corporate worship. A state order.
Notice he didn't switch to livestreaming services as an alternative to flatten the curve. They were planning to continue worship as usual. No, all it took was a state order, and he immediately capitulates. But there are two problems:
1. The bans are unconstitutional. Churches above the arbitrary numerical threshold–which varies from one locality to the next–should practice civil disobedience. In some cases there are ways to circumvent the numerical threshold by subdividing services, but in general, civil authorities who violate the free exercise of religion clause of the 1st amendment ought to be defied and a class action suit brought against them. When gov't officials ban public gatherings of 250 people (or whatever the figure), that's an indirect ban on church services with 250+ attendance. And that, in turn, is a Constitutional violation. Whether or not that's their intention, that's the effect.
2. This is the state disrupting the normal nature of Christian worship. This is the state redefining what is permissible Christian worship. Where the state dictates the size of a Christian worship service. Where the state proscribes how many Christians are allowed to meet at one time and place. And this may drag on for months. Moreover, it sets a dangerous precedent. It's fascinating to see how many reputedly conservative churches have buckled under to numerical thresholds and disbanded physical fellowship.
3. Notice, I'm not commenting on churches which have substituted livestreaming because they think social distancing is necessary to bend the curve. That's a different argument. I've discussed that as well, but that's not the point I'm drawing attention to here.
Thursday, December 13, 2018
Friday, June 08, 2018
Robert George on Masterpiece Cake ruling
I'd note that so-called civil rights commissions should be abolished. These are despotic organizations that subvert representative democracy. They function as an autonomous fourth branch of gov't, unanswerable to the electorate or citizen review.
Monday, June 04, 2018
Ben Shapiro on Masterpiece Cake ruling
David French is more optimistic while Ben Shapiro is more pessimistic:
https://www.dailywire.com/news/31422/heres-what-you-need-know-about-masterpiece-ben-shapiro
A lot hangs on the future composition of SCOTUS
https://www.dailywire.com/news/31422/heres-what-you-need-know-about-masterpiece-ben-shapiro
A lot hangs on the future composition of SCOTUS
Thursday, December 07, 2017
Freedom of association
Phillips is not discriminating against anyone because of their sexual orientation. He is not refusing service to gay couples because they are gay. In fact, he serves gay customers all the time. He is perfectly happy and willing to serve gay customers in his shop.
http://www.dennyburk.com/christian-baker-jack-phillips-gets-his-day-in-court/
I'm not criticizing the legal strategy of his counsel. The best chance of winning in court is to play by the rules of the status quo. But it concerns me when Christian pundits frame the issue this way. It seems to concede that if he were refusing to serve gay customers because they were gay, then that gives government the right to drive him out of business.
This needs to be relentlessly challenged. Freedom of association is a Constitutional right. But when the issue is framed this way, it turns a Constitutional right on its head. This means there's a standing presumption against freedom of association, and the onus is on a litigant to seek an exemption.
Moreover, the litigant must demonstrate to the satisfaction of a court that his request is well-intentioned.
But that's a travesty of Constitutional rights. The prerogative to exercise your Constitutional rights shouldn't hinge on your motives. What kind of right is that?
Moreover, a Constitutional right should mean there's an overwhelming presumption in favor of having the prerogative to exercise that right, which can only be overcome in extreme cases. To deny the prerogative to exercise one's Constitutional rights should be the exception, not the other way around.
The whole point of the Bill of Rights was to remove some issues from the discretion and purview of the state. Now we've turned this into the opposite, where citizens must periodically justify their Constitutional rights to the satisfaction of a judgment. And I don't just mean freedom of association. Secular progressives apply the same inverted standard to freedom of speech, religion, and the right to bear arms (among other things).
The immediate source of the problem is the tension between freedom of association and public accommodations, where the latter overrides the former. And that's used as a wedge tactic.
This goes back to the civil rights era, when Jim Crow laws mandated racial discrimination. However, the proper solution wasn't to replace one coercive policy with a coercive policy in the opposite direction. Jim Crow laws prohibited white businessmen from serving black customers. Jim Crow laws denied white businessmen the freedom to treat black and white customers equally. The alternative is not to replace that with a different prohibition, but to restore freedom. To expand freedom. To uphold Constitutional rights, including the 1st and 14th Amendments.
To my knowledge, the 13-14th amendments were designed to overrule black codes. The Jim Crow laws were an effort to circumvent the 13-14 amendments and reinstitute black codes. In that case, courts were entirely within their prerogative to strike down Jim Crow laws, as unconstitutional.
That, however, is different from the principle of public accommodations. Secular progressives use that as a false premise to build on. They decree increasingly expansive interpretations of that principle.
This needs to be resisted and overturned. For one thing, even if that was the settlement of the LBJ era, past generations lack the authority to ipso facto impose their will on future generations. The next generation has the right to reopen past settlements. The dead don't have the right to make decisions for the living.
Now, in some cases, policies by past generations have irreversible consequences. Moreover, some policies by past generations are good policies, which ought to be continued.
But just because a former generation put a policy into place doesn't make that binding on all future generations. Their moral and intellectual judgment doesn't automatically outrank the next generation.
It's a paternalistic mindset, like parents who imagine they have a lifelong prerogative to dictate how their grown children should live their lives. But past generations aren't inherently wiser than future generations. They're not entitled to reach out from the grave (as it were) and exert postmortem control over the decisions of future generations. Each generation has its own responsibilities. Each generation has a duty to assess the status quo.
Tuesday, December 05, 2017
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